Title to their rude and indigested Opinions Howsoever from some or all of these Causes not a few of the former wicked and never to be justified Principles ignorant and unwarrantable endeavours and complaints have since Monarchical Government and our Laws and Liberties were so happily restored sprung up again and no sooner was our David brought back over Jordan but many a railing cursing and rebellious Shimei that had done more then cast stones against him and his Royal Father made haste and came with the men of Juda and Loyal party to meet him and as if they had not remembred all the mischiefs which they had done unto him his Brethren Royal Father Family and good people pretended that they had been greatly instrumental in it and having gain'd a very large and extensive Act of general Pardon and Oblivion which as to treason murder felony faction and rebellion the Loyal party needed not an Act of Parliament for confirmation of what their abusive Courts of Justice had done in matters of Judicature betwixt party and party in the inter regnum and times of Usurpation and another Act of Parliament to make honest free many Parents on earth from Adultery or Fornication and legitimate and un-bastar'd many of their Children begotten in a wrong way of Marriage solemnized in despite of the Laws and our Church of England before a Justice of Peace not in a Church but an Hall Parler or Chamber where that kind of Magistrate was a Knight or Gentleman or many times in a Shop when he was a Trades-man which the Kings faithful Subjects abhorred and some of them having warmed themselves by the Farming of the Kings Revenue and those grand and ever to be detested Artifices of Advance and defalcation which have so much cankred decayed and ruined it and others that liâ—ed their consciences with plundrings and sequestrations and Committee ungodly Emoluments did fall again to their former Trade and Engines of subverting our Laws and turning the Justice of the Kingdom into their Abortive projects and new-found Politiques and hoped in the end to recompence the loss of their possesion of the Lands of the King Queen Prince Nobility Gentry Bishops Dean and Chapters which they having purchased at an easie rate were taken from them and enforced to be restored and their hopes of gaining the Lands and Endowments of the Universities and Colledges which by a failing of Providers and some mistakes as they wickedly thought of Divine Dispensations or some Errors of their new lights they had unexpectedly lost And therefore summoned got together their mis-apprehensions and Invectives against that antient very legal rational custom of Fines to be Pay'd upon Original Writs where the Debt or Damage exceeded Forty Pounds which from the Year 1651. unto his Majesties happy Return unto his Throne had by their Rebellions and ungrounded clamors against the payment of them to make a misâ—lead people the more willing and able to continue and contribute to a War against their consciences and eternal happiness been taken away or laid to sleep In order whereunto in a Book Entituled the Wants of England Printed in the year 1667. it was among other things offered to the consideration of both Houses of Parliament that according to the law of God and other Christian States Christian clemency gentleness and mercy and the antient Laws and Customes of this Kingdom no person be for any new debt cast in prison but be left at liberty to work out his Debt by industry In the year 1669. a Petition was exhibited to the King and both Houses of Parliament that in Actions of Debt there may be no Arrest or Imprisonment of the Debtors Body but a Summons made at his House or hung at his door and for want of an Appearance his Goods and real Estate to be seized and the like in the year 1671. And in the same Year a Bill for an Act of Parliament was with great Importunity desired for the Registring of all Incumbrances of Land and of all Debts and Ingagements then which nothing could have more undone the greatest part of an Impoverished Nobility and Gentry by the late Wars and Taxes nor any thing more have Bankrupted Citizens and Trades-men whose Estates do consist in a great deal more in Credit and Opinion than in reality and substance But the promoters of those Innovations who endeavoured to pull in pieces our wellestablished Laws concerning Arrests and Outlaries did in those their Attempts speed no better then Balaak the King of Moab did by sending for Balaam to curse the children of Israel when notwithstanding his Erecting of several Altars and all his solicitations and promisses of Rewards he could not hinder him from blessing instead of cursing them for the wisdom of the King and Parliament and his Privy Councel did think it to be more for the good of the people to suspend their desires and Devises until the King might understand that there could be any reason cause or ground to alter or forsake the old Fundamental Laws so for many Ages well approved to comply with their humors ill designes but being willing to give what reasonable content he could to that small complaining part of the people without preâ—judice damage to the universality greater number of his Subjects did as the fittest expedient and all that the Law could permit and his reason and Soveraignty perswade him to do for the allaying that distemper which had seised upon a sort of ignorant seditious unquiet spirited people whom no reason can satisfie but would set up their new devices which are never like to perform their Promises and Intendments And needed not as touching the taking away of the Process of Arrest Utlary to have troubled his Majesty and Parliament and themselves and others with such unwholsom and improbable Remedies for that which their Ignorance and Vain Imaginations only told them were Grievances but should rather have acquiesced in a due consideration that his Majesty did not hold it to be agreeable to Justice to abolish the Process of Arrest or Outlary or to change or take away the Fundamental Lawes which established or allowed of those Antient and legal kindes of Law proccedings as grant in the Year of our Lord 1664. by the advice of his Privy Councel his Commission for the relief of Poor and Distressed Prisoners under the Great Seal of England to the Arch-Bishop of Canterbury Bishops of London Winchester Rochester Lord Mayor of London for the time being Judges and Justices of the Courts of Kings Bench Master of the Rolls Judges of the Court of Common Pleas Barons of the Exchequer Chancellor of the Dutchy of Lancaster Masters of Requests and Chancery Attorney and Sollicitor-General and Attorney of the Dutchy of Lancaster Deans of St. Paul Westminster Lieutenant of the Tower of London Bishops Chancellors with the Advocats of the Court of the Arch Bishops of Canterbury and Bishop of London for thâ— time being c.
Doth wast his Estate and intendeth to defraud his Creditors 9. Is a Gamester 10. Hath all the signs of a suspitious Person 11. Makes use of many Men to be bound or ingaged for him 12. Engageth himself in many business 13. Is looking out or providing for another Habitation 14. Is turned Informer 15. Keeps his Shop shut up 16. Is a Man of ill life or conversation 17. Or hath been so formerly 18. Hath been an Offender in Criminal matters 19. Lodgeth his Goods in some secret place 20. And is packing up to be gone But they that can dream of Tyranny and Oppression in our Proces of Arrest and Outlawry and know not how to prove it will rather then miscarry in their design of Metamorphosing our Laws and putting them into as many new fashions as the variety 〈◊〉 vanity of their Cloths and Habits wâ—ll if those accusations must vanish and never be able to make them any good return seek out some other way to alter or abrogate those kind of Law proceedings and therefore to pretend that the Statute of 25 E. 3. ca. 〈◊〉 giving Proces of Capias and Outlawry in Actions of Debt is either by the Act of Parliament of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. repealed CHAP. XIV That the Statute of 25 E. 3 ca. 17. which giveth Proces of Capias and Bxigenâ— in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliaments of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. there being no indâ—â—venimâ—â— or prejudice to the publick good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament WHen it cannot come within the virge of any probability that the said Statute of 25 E. 3. ca. 17. should in the same Parliament those grand Assemblies being then long before usually shout and of no long continuance be made when the Statute of 25. E. 3. ca. 4. was made That none should be taken by Petition or Suggestion to the King or his Councel but by 〈◊〉 Indictment Presentment or Proces made by Writ original If it had not been believed to have been consistent with it or the meaning of our Magna Charta ca. 29. or if the Statute of 25 E. 3. ca. 17. had been repealed by the shortly after following Statutes of 28 E. 3. or 4â— E. 3. ca. 1. such a repeal should not be taken notice of by those that lived in those times or near unto them or that if there had been any grievance found or perceived in that Statute of 25 E. 3. ca. 17. or that the said Statute of 28 E. 3. had repealed it the Statute made by the aforesaid King E. 3. in the 36. year of his Reign would have ordained the Confirmation of the great Charler and the Charâ—er of the Forrest and commanded that the other Statutes mode in his time and in the time of his Progenitors be well and surely holden and kept in all points or that the Citizens of London who in their Courts of Justice in their City have for so many Centuries of years last past to their very great advantages made use of the Proces of Arrest as a lawful and beneficial Custom and constrained all that were to enjoy the largely comprehensive Freedom of that City to take an Oath to maintain the Franchises and Customs thereof would have made it their business to get many an Act of Parliament to confirm them if they had supposed it to have been prejudicial to them And that the People of England should in so many several Ages since those pretended Acts of repeal not only have petitioned for several Acts of Parliament for Proces of Arrest and Outlawry in several Actions but through so many past Ages and Generations Arrest and imprison one another in the way to Justice and not at all think themselves guilty of betraying their own Liberties and never complain of it Or that the Justice of the Nation should in all that long course of time be so sleepy or mistaken as to continue and put in Execution an Act of Parliament repealed and maintain and continue a grievance Oâ— that our Ancestors who were not all restrained by that Statute of 25 E. 3. ca. 17. from the former more usual course of proceedings in Actions of Debt by Writs of Summons Pone and Distringas for there were Writs of Summons Pone and Distress made use of in Debt and Accompt after the making of that Statute where there was such a visibility of Estate as the Sheriff could not safely return that the Defendant had nothing whereby he might be summoned it having been in Easter Term in the 22 year of the Reign of King Edward the 1. declared to be a constant rule in Law Quod nullus qui habet terras debet arrestari per Corpus ad reddendum compitum set per terras cum habeat sufficientiam No Man that had Lands sufficient was to be arrested by his Body in an Action of Accompt as there may be at this day if the Plaintiffs have a mind unto it and would rather procede by a longer way about then a shorter And should of themselves have made an Election of the way of Capias Arrest or Outlawry and continue it for above three hundred fifty years without any thing like a complaint against it if they could have believed that that Act of Parliament of 25 E. 3. ca. 17. had been repealed and a long and undeniable experience had not informed them that it was a much better and expedite way of bringing Men to Justice or that if the Writs of Pone and Distress had been the better way the Statute made in the Seventh year of the Reign of King Henry the Fifth which was sixty-nine years after to give Proces of Arrest and Outlawry in Actions or Writs for forging of Charters or Evidences would have esteemed it to be for the Common good of the People to have enacted it or if after the making of that Statute the course of Capias Arrest and Outlawry had not been believed to be the most beneficial the Statute made in the 19th year of the Reign of King Henry the Seventh for giving of Proces of Arrest and Outlawry in Actions of the Case which was made 84. years after would have declared the way of Pone and Distress to have been the Cause of great delays or that the Act of Parliament made in the 23th year of the Reign of King Henry the Eigth for giving Proces of Capias in Writs of Annuity which was made twenty-eight years after the making of that Statute would have said there were many delayes in Actions of Annuities because no Writ of Capias did lie in that Action Acts of Parliament in those dayes and long before after having by our Kings been granted upon the Petitions and Request of their Subjects and penned advised or carefully perused
THE Ancient Legal Fundamental and Necessary Rights OF Courts of Justice In their Writs of Capias Arrests and Process of Outlary And the Illegality many mischiefs and Inconveniences which may arrive to the People of England by the Proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of Justice and the establishing of a new by peremptory Summons and Citations in Actions of Debt By Fabian Philipps Esq Antonius Matheus in Praefat ad Lib de Auctâ—onibus Arduum est vetustis novitatem dare novis Autoritatem Dira per incantum Serpunt Contagia vulgus LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black Boy in Fleet-street over against St. Dunstans Church 1676. The Contents of the Chapters Chap. 1. THe many mischiefs and inconveniences which may happen by an Act of Parliament if obtained for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired Chap. 2. That the most part of that desired Innovation was borrowed from Mr. Elsliot's wicked Invention and a wild Systeme not long after framed and from some also now much disused part of the Civil Laws Chap. 3. The reason and necessity of the more frequent use of Writs of Arrest and Vtlary then was before the Statute of 25 E. 3. cap. 17. Chap. 4. The Ancient use as well as necessity of the Process of Arrest and Outlawry in this and other Nations Chap. 5. The Process of Arrest and Vtlary are a more gentle way of compelling men to pay their Debts or appear in Courts of Justice then that which was formerly used Chap. 6. The delays and inconveniences of the Process of Summons Pone distringas were a great if not the only cause of the disuse thereof Chap. 7. The Writs and Process of Arrest and Outlawry have increased preserved and encouraged Trade better secured the Creditors Debts and made the borrowing of Money more easie then it was before Chap. 8. The pawn and ingagement of the Body is most commonly a better security then Lands or personal Estate upon which the borrowing of Money was not only very troublesome but difficult Chap. 9. The difference betwixt borrowing of Money upon Lands and real Estate and the procuring of it upon personal security and that without trust and personal security Trade cannot well or at all subsist Chap. 10. The way of Capias and Arrest is no oppression or tyranny exercised upon the people since the making of the Statute of 25 E. 3. cap. 17. or hath been hitherto or may be destructive to their Liberties Chap. 11. That the wisest of the Grecian Commonwealths Athens and Sparta those great contenders for Liberty and preservers of it did in their establishments and methods of Justice neither understand or suspect any Tyranny or oppression to be in the necessary and modâ—rate use of the Process of Arrest Chap. 12. The troubles and seditions of the people of Rome concerning the whippings scourging selling for Bond-slaves and other cruelties used by Creditors in the suing and prosecution for their Debts and the troubles and endeavours of the Magistrates and Senators to appease them Chap. 13. That their Order made to pacifie a tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restraints of their persons until they appeared in Courts of Justice or gave bayl to do it Chap. 14. That the Statute of 25 E. 3. cap. 17. which giveth Process of Capias and Exigent in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliament of 28 E. 3. or 42 E. 3. cap. 1. there being no inconvenience or prejudice to the Publique good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament Chap. 15. That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. cap. 17. Chap. 16. An examination of the Opinions of Sir Edward Coke in his report of Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errors appearing in that Book or Manuscript called the Mirrour of Justice and the fictitious matters and relations mentioned therein Chap. 17. That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create Offices places imployments and profits to the contrivers thereof and their party Chap. 18. That neither Oliver Cromwell or his Son Richard the second Mock-Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever-changing kind of Reformations Chap. 19. What occasioned the contrivance of the former Projects and groundless Complaints against our Laws since his Majesties happy Restauration Chap. 20. That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable one with the other and that Laws being to be binding are to be certain and positive not arbitrary Chap. 21. That it will not be for the Interest of the King and his people to give way to that Design which may open a passage to other Innovations and Contrivances as much if not more inconvenient and prejudicial CHAP. I. The many mischiefs and inconveniences which may happen by an Act of Parliament to be made for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired THe Suggestions and that which should be the Causes or inducements to such an Act of Parliament are greatly mistaken or if there happen any such Evils as are pretended they are Raro Contingentia and do but seldom happen And when they do arise have their originals from other Causes but not from Arrests in Actions of Debt which by the shortest account are and have been of 374. years continuance by order and approbation of many Acts of Parliament but may be demonstrated to have been of a far greater Age and equal to that of the Eldest Court or Method of Justice in this or any other civilized Nation in the world The mischances happening by two or three Bailiffs in 20. or 30 jears killed most commonly upon the score of their own provocation rudeness and misdemeanors are when they do so happen in the unruly Suburbs of London towards Westminster for in the other too vast extent of them an Age or Century is scarce able to furnish out one of those evil accidents And within the City of London where Credit seems to be the Life and
represents his Client shall be suffered to make the summons or Citations and to be both Party Judge and Sheriff without an authentication of hand seal or stamp of any Court or their subordinate officers which no Court of Justice Christian or Heathen hath yet adventured to allow be hugely opposit to the rules and maximes as well of the Civil as the Comon Law used for more then one thousand years that nemo privatus Citare potest and bereave the high court of Chancery of those Rights which do truly and justly belong unto it and the Judges of all other the Courts and circuits of England and Wales who by an act of Parliament made in the thirteenth year of the Reign of King E. 1. and by ancient custom long before used are to have their Clericos Irrotulantes sworn and intelligent officers to record and make their writs and process Frustrate the Antiently well approved power of the court of Chancery in their process upon contempts when there shall be as there will always happen to be matters of Equity in cases of Fraud Combinations Hardships or Rigours of Law fit to be releived by the said court and a great deale more then were formerly if the Creditors shall by this new Model of common Law proceedings be let loose to act their own will and furies upon their insolvent or not punctually performing debtors and that high court shall upon contempts or disobedience of its process of Attachments or commissions of Rebellion have no power to punish them by arrest or imprisonment being the only meanes tueri Jurisdictionem to maintain and uphold its Authority and Jurisdictions The hands of Justice and coercive power authority of it will be paralitique manacled less in the laying by of the Sheriffs and their very necessary under Officers by whom the Law received its Execution which is as the life of it and might as well be made use of in the Summons Attachment or Process before Judgment as they are to be afterwards where there are and may be dangers of killing of men if ever there were so many as is informed by how much an execution after Judgment of Body or goods being unbaylable is more terrible and to be avoided by the debtor then that which is baylable and in many cases to be discharged by an appearance only to the action and if the Plantiffs or their servants the Attornies Clarks Constables or Porters must be the Sheriffs or their Bailiffs there may be more danger of resistance killing tumults and commotions then ever there was of Bayliffs and of more extortion and tricks in those that are not sworn then in those that are sworne and bound up by many Statutes and Acts of Parliament and the penalties thereof Or if arrests and the execution of Justice by the Sheriffs and their subordinate officers could be any primary or never failing efficient causes of the slâ—ughters seldom happening upon arrests or that to prevent it there will be any such necessity of laying aside or disuseing that necessary office of Sheriffs in the execution of Justice as well after judgment as before that of the raising the posse comitatus in cases of a forcible resistance of their taking possessions or levying the Kings debts is to be put under the same fate and neither Sheriff or Constable may arrest a felon but obey the like method of Summoning him at his house or Lodging to know if he be willing to be indicted come to his Trial and adventure a Hanging But no well built or grounded reason being likely to be found to support such reasonless and lawless opinions the Adorers of such Imagination may assure their disciples that Elias is to bring the reason and that until then they must expect it and may in the mean time do much better to give them leave to believe that Such a System of Infamy and Cruelty and an unmerciful credit tearing course of summoning publickly by papers left at the debtors Houses or Lodgings or which is worse fastned upon the outward doores which the malitious contrivances or tricks of ill affected or violent Plaintiffs if not prohibited by some severe penalties will too often prompt them unto and in the consequence bring an Inundation of ruins upon this Nation who do now more than half of them live upon credit and are so generally indebted as they will not be much wide or from the Mark who do believe that half the Lands and Estates real and Personal of the Kingdom sold to the utmost will not be enough to pay the debts thereof And by Suing out as it were Commissions of Bankrupt against all the Nation write Lord have mercy upon us upon too many mens doors and now there is so little money left them take a way the Credit that should help to support them Add affliction to affliction to all the Loyal nobility Gentry and Citizens that had impoverished themselves by their Loyalty and taking part with their King and his Laws and the Church of England and leave them to the invisible mercy of those that did help to Rob Plunder and Sequester them Bankrupt and undo most of the Tradesmen and be a meanes to help the over-hasty Creditors to a composition of four Shillings in the Pound or a great deal less when as otherwise with a little patience they might have had their whole debts pay'd unto them and make the unbridled fury of one Creditor to be a cause of the never payment of other Creditors debts When plaintiffs are many times as unreasonable as they are unmerciful insolent and unperswadable where they can either find or keep advantages and that many an Action as well as many a Plaintiff may be Malitious Oppressive Unjust and Vexatious and such a fancied speedy way of geting in debts may be very instrumental for the advance of evil purposes and knavish designs No Inhabitant of Wales where their Laws do already allow them an Iterum summons nor in the Cincque ports or any of the Counties palatine of Chester Lancaster or Durham will be able to borrow any money in London or out of their own Countries upon the best security when that those who shall be imployed to serve the Summons being not the Sheriffs officers may be in danger to be beaten and cannot be outlawed without several Writs of Capias Many Tradesmen do only subsist by their credits and take up great sums of money upon an opinion of their present abilities or future gain by which they do commonly give no other security then their Persons and by the advantages therof do many times by their industry attain unto great Estates but if the process of arrest be taken away they can hope no more to be so easily entrusted for that an Attachment of the person doth secure the plaintiffs debt either by present payment or causing other satisfaction which the proceedings by summons in this manner will never attain unto The fear and disgrace of a Process of
by the Reverend Judges of the Land and Councel in Law of our Kings and Princes before they were passed and ratified and that so many of our Fore-fathers who for so many years and Ages have in every year been arrested or voluntarily put in Bail to appear and avoid it should be so senseless as not to understand the said Act of Parliament of 2â— E. 3. ca. 17. to have been repealed if any such thing had been or deem it to be a grievance to be compelled to appear in a Court of Justice or that all the Plaintiffs in those kind of Actions should be so wicked as to continue that course and kind of Proces If they could have understood it to have been a grievance the Dean and Chapter of Lincoln would not have prescribed for a Liberty in their Court to Arrest in all personal Actions and the Lievtenant of the Tower of London the like nor the Judges have allowed those prescriptions and all Cities Burroughs and Corporations where they have connusance of Pleas would not upon a nihil habet returned for that is so alwayes done of course in Cities and Corporations to warrant their Arrests have claimed and exercised a power to Arrest as well Inhabitants as Forreigners coming thither or that the Judges of the Admiralty in Sea-faring and Maritime Causes would have permitted as they have anciently done Arrests to be made upon Debts Contracts Charter parties or the like or have been allowed to do it if it had deserved to have been called a grievance or that it ought not to have been done by the aforesaid supposed Acts of Repeal And that none of so many thousand or more then ten hundred thousand Defendants should by Pleas Demurrers or otherwise signifie so much or so many Advocates and so many learned Judges Serjeants and Sages of the Law which have been since the making of that Statute of 25 E. 3. for the giving of Proces of Outlawry in Actions of Debt should not of themselves have found out or have sought it from our Kings and their Parliaments some remedies or would not have forborn the granting or acting by such kind of Process if they had conceived that the Act of Parliament of 25 E. 3. ca. 17. had been replealed or that such kind of Process had been a grievance And that more then one hundred thirty and seven Parliaments which have been since the making of that Statute And so many Parliaments and Assemblies of Wise Men before and at the making of that Statute which met only to be wise and find out fit helps and remedies for grievances and things amiss should not foresee it to be a grievance or be so careless as not after to procure some Law or Act of Parliament to give the People ease in it or a fuller notice of the repeal thereof When in the Parliament of the 38th year of the Reign of King Edward 3. the Commons did pray that the King would not grant Protections whereby Men could not recover their Debts which was as they alledged A thing to the destruction of the People and against Common right Or that in so many Petitions in all those so many Parliaments for the redress of Grievances made and committed by Sheriffs Under-Sheriffs and their Bailiffs and that all Estates might enjoy their Liberties if no Law be to the contrary saving to all Men their rights and the justly denyed Petitions against the payment of Fines upon original Writs issuing out of the Chancery nor in that of the Commons in Parliament in the 46th year of the Reign of that King that Writs of Trespas in the Court of Common Pleas although long before then used might be made as well by that Court as by the Court of King Bench for that the Court of Kings Bench was removeable at the Kings pleasure and that the Great Charter and the Charter of the Forrest and all other Statutes made by the King and his Progenitors for the amendment of the Realm and tranquillity and ease of his People might be kept and duly put in Execution in all points Or in the Petitions of the Commons of the County of Kent to that King in the Parliament in the 50th year of his Reign against his Officers of the Castle of Dover for arresting by their Catchpoles out of their Jurisdiction or in the before mentioned great Complaint of the Clergy made in Parliament upon the death of Robert de Hauley in the 2d year of the Reign of King Richard the 2d slain at the High Altar in the Church of Westminster Abby when he being arrested and pursued by Bailiffs had taken Sanctuary there and the great debate thereupon before the King or at the making of the Act of Parliament in the Seventh year of the Reign of King Henry the Fourth that impotent persons outlawed might make their Attorneys and the Acts of Parliament made in the 10th and 18th years of the Reign of Henry the 6th upon complaints That Men were outlawed and could not know where to find either the Plaintiffs or their Attorneys and remedies ordained Or in the Petition in the Parliament in the 33th year of the Reign of King Henry the Sixth against the multitude of Attorneys in the City of Norwich and Counties of Norfolk and Suffolk for their inciting and stirring up the People to suites in Law there should be no mention of that supposed grievance by the Writs of Capias and Proces of Outlawry if it had then been thought or believed to have been one And that in the thirty times petitioning in several Parliaments of our Kings and Princes for the Confirmation of Magna Carta which as to that part of it in the Chapter or Article twenty-nine is the most excellent and the best of all our Laws The People of England should not understand the aforesaid Act of Parliament made in the 25th year of the Reign of King Edward the 3. for giving Proces of Arrest and exigent in Actions of Debts and other Actions therein mentioned if it could be interpreted to be any violation of it or that in all their Petitions for redress of grievances and procuring of good Laws to be made there appears nothing at all to have been alledged That by the Common Law the Person of a Debtor was not arrestable or that there is no positive Statute Law in force for the continuing of the Capias and Exigent against Persons in Debt and meerly Civil causes since the fancied repeal of the said Act of Parliament of 25 E. 3. ca. 17. by the said Statute of 28 and 42 E. 3. But they who are so loath to part with their causeless affrights or are so unwilling to loose the content of being the Founders of a change or alteration in the Body politique be it never so dangerous or of most certain evil consequences and are willing enough that their Fellow Subjects of whom they pretend to take so much care should
which Statutes will be best expounded by Sir Edward Coke who in his Exposition and Comment upon Magna Carta ca. 29. and all the other parts thereof for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn and are but as Confirmations of it saith that by the Law of the Land is to be understood the Common Law Statute Law and Customes of England which though they be in the Negative have no reference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the former allowed and due Proces of the Law or declare them to be contrary to Magna Carta or any Article or point thereof nor have any express words or so much as any preamble which may signfie any purpose that they had to repeal it for all that is forbidden by those two Statutes of supposed repeal is to prevent the mischiefs complained of by suggestions to the King and his Councel and that no man be disinherited put to death or out of his Land taken imprisoned or brought to answer but by due Proces â—f the Law according to the old Law of the Land And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Suggestion made unto the King doth mention the great Charter and the words therein contained That no Man be taken nor imprisoned nor put out of his Free-hold without Proces of the Law For if our Records and Law-books and the reason thereof and all that hath been learned and believed hitherto do not fail us those Statutes or either of them cannot be interpreted to intend to take away any lawful and necessary Arrests and Imprisonments in Actions of Trespas which were in use long before the making of Magna Carta or the arresting or restraining of the persons liberties of Defendants in Actions of Debt and the like or for a Contempt of the King or his Courts of Justice in not appearing when they were summoned or cited or when they had no visible Estate to satisfie or were likely to fly or run away the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away the main scope or purpose of them being only to restrain any arbitrary Government or any Lawless proceedings of the People one against the other for it is impossible by any sense or reasonable Construction of those Statutes to conclude any the least design in them or either of them to take away or alter a Law or Custom of the Nation which was not then at all so much as complained of when by forbidding to do that which was against the Law they must of necessity be understood to allow of that which was the Law or consistent with it For it hath been said and never denyed to be a rule in our Common Law as well as in the Civil Law that Exceptio firmat regulam in Casubus non exceptis The exception or saving doth preserve and allow of that to be the Law which is excepted otherwise if the exception should be as certainly it is not nugatory and serves for nothing the meaning of our Magna Carta it self and all those very many Statutes of Confirmation afterwards enacted must be as they can never be rightly taken to be that be the matter or cause Civil or Criminal Treason Murder or Felony no Man is at all to be disseised or put out of his Lands arrested imprisoned or compelled to answer and the King who is sworn to administer Justice to his Subjects must by Magna Carta it self be denyed and debarred the use of means to do it and the People thereby put into a condition not to be able to obtain Justice one against another And if no Laws concerning Proces in Debt or other personal Actions which have been enacted or allowed by Acts of Parliament subsequent to those before mentioned and supposed repealing Acts of Parliament made in the 28. and 42 E. 3. or derived by necessary deduction from reason which ought to be the Soul and Constituting part of all Laws shall not be allowed or taken for Laws the Parliaments of England wherein all manner of grievances and many times very small and inconsiderable were seldom omitted to be complained of or petitioned against have by making of the Statute of 7 H. 5. for giving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of Annuity not only not remedied but enacted grievances and all our other Laws which have been since made concerning the taking or imprisoning of Mens Bodies in Actions of Debt or other Civil and personal Actions or been put in Execution have been no other then abuses and transgressions of the Law and all that so many learned conscientious and Reverend Judges of the Law and sworn to judge according to it have since those times done or permitted to be done in pursuance of those latter Laws have been but as so many great mistakings to the oppression of the People And the Parliament of 3 Car. primi whereof the very learned Selden and that great Lawyer Sir Edward Coke and many very worthy Men and Lovers of our English Laws and Liberties were Members some of which had not long before made themselves Prisoners to secure a pretended Liberty would have been guilty of a great oversight and inadvertency in not getting better Provisions in the Act of Parliament made upon that which was called the Petition of Right wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon are confirmed And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said Act are declared to be good Laws and Statutes of the Realm and it was ordained That no Offender of what kind soever be exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of the Realm All those Acts of Parliament being then expounded and understood to be only intended against the Imprisonment of Men by the King or his Councel without cause shewn and the same Parliament did then procure diverse Acts of Parliament to be repealed but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament in Terms or words intelligible or by implication or otherwise and did never yet deserve to be so since the making thereof Nor would that Parliament labouring so much for liberty have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias and Exigent or Outlawry in Actions
deliriums are likewise to be added those giddy Assertions that the People are unsecure in their Estates and that their good and welfare depends upon their being manumitted and enfranchised in their persons and made Noble and free by Abolishing of the Process of Arrest and Outlary And that such an Act of Grace will be accompted by all goodmen and their posterities a sufficient recompence for all the Subjects past sufferings and be the greatest mercy that ever any King of England extended to his Subjects since they were a Nation Which should it take effect may be as little successful to the pretended Advocat and his Party and the Trade and Interest of the Kingdom as the Eagles carrying in another Case the burning Cole in the Apologue to her Nest And until they could have been sure of a better which they are never like to be might have forborne their Snarling and Barking at our Laws of which that Act of Parliament of 25. E. 3. ca. 17. Was accompted to be a part which until the Distemper which seized upon a seditious part of the people in the unhappy year of 1641. were so well beloved and deservedly commended as Thirning Chief Justice of the Court of Common Pleas publickly declared in the 12th year of the Reign of King Henry the 4th that the Laws of England were in the Reign of King Edward the 3d. In the greatest perfection that ever they were the Judges Sage and learneds and the pleading the greatest Honour and Ornament of the Law were in that Kings Reigne of that excellency as those of former times were but feeble unto them Sir John Fortescue Knight Lord Chief Justice of the Court of Kings Bench in the Reign of King Henry the sixth by comparing of our Laws and Government with the Laws and Government of France and other Nations hath in his learned Book Written on that Subject proved and demonstrated that our Laws of England Do deserve the Preheminence over all other Laws and do more secure the People in their Estates Liberties and Properties then those of France or any other Nation Queen Elizabeth who made it her constant and usual Charge to her Judges to do Justice and not to disturbe or delay it Governed her people by her Laws in Plenty Peace and Prosperity to the Worlds admiration Terror of her Enemies and the Comfort and Support of her Friends and Allies did so after her death Reign and live in her peoples hearts as they in or about London have to this time from the Coronation or beginning of her happy Reign now above one hundred and sixteen years ago in a grateful acknowledgment of it never omitted to Celebrate that day with the Ringing of Bells some legacies having been given in some places also for the perpetuating thereof King James had a great care of the expedition and execution of the Laws in whose peaceable and plentiful Reign ten years have passed without any Tax or Assessment of the people And King Charles his Son made a great part of his Coyn to wear the Inscription that he fought against a Rebellious part of his Subjects to maintain the Laws priviledges of Parliament and liberties of the people and dyed a Martyr because he would not betray or deliver them up to a Lawless unlimited and ever to be dreaded Arbitrary power So as that seducing Author might have found a better imployment then to throw dirt at our Laws before he understands them and might have been able to have given a better accompt of his time if he had followed the advice of Sir Edward Coke Who was so much a welwiller to the Proces of Arrest and Utlary as whilst he was Chief Justice of the Court of Comon Pleas he did never dislike or refuse the putting his name and Teste to such kind of Writs under the Kings Seal entrusted to his custody and being afterwards made Lord Chief Justice of the Court of Kings Bench had so good an opinion of the Process of Arrest and the necessity and usefulness thereof as that to maintain and support the Writs of Latitat and Bills of Midlesex in Actions of Debt and other personal Actions then too often made by that Court which had no Jurisdiction or Conusans thereof but in Case of a Defendants present imprisonment or of priviledge of some of their Members to hold Pleas in such kind of actions he feigned a prescription to be made and used in the declarations thereupon that the Defendant was in Custodia Marr ' Marescalli Curiae and actually a Prisoner when he neither was so at the time of the making of the said Writs or the time of the Defendants giving Bond for his appearance to the Sheriff or at the time of the Plaintiffs declaring against him as he did publiquely declare in Print That every man ought next to his duty to God and his King to yield a due reverence and obedience to the Common Laws of England for that of all Laws humane they were most equal most certain of great antiquity least delay most beneficial and easie to be observed And That he could defend them against any Man that is not malicious without understanding and make it manifest to any Man of judgment and indifferency by proofs pregnant and demonstrations and by Records and testimonies luculent and irrefragable Which just and due value and estimation of our Laws may well be credited when if a Jury of the Subjects of our Neighbour Nations Kings and Princes or of the Republique of Holland that Corporation of Kings were impannelled and fitted with the knowledge and understanding of the excellency of them they could not either as to the imposing or payment of Taxes or to any other particulars refuse to give a Verdict upon Oath that our Laws and Customes do in their perfection and right reason generally far excel those by which they are governed aud that the Subjects of England and Wales are by the happiness of a well tempered Monarchy and our Laws as secure from any danger of arbitrary power as any people under Heaven And he would find it to be a difficulty insuperable to ptocure our Merchants of England or any of those who do undertake to insure the hazardous adventures of those that do go or send to Sea and see the wonders of the deep and adventure their personal Estates upon the cholerick waves thereof not seldom accompanied with humerous and raging winds to give him an assurance and certainty that the people shall not be ruined by that his goodly indigested project which in its folly and inconveniencies as to the credit reputation and Justice of the Nation exceeds that of Jack Cade that great Master of Ignorance who had perswaded his Rable-rout to believe that it would be an excellent piece of Reformation and much for the good of the people to suppress all learning and dispatch all business and affaires by the help only of the Score and the Tally And will howsoever be as
by discountenancing the present Laws to loosen the bonds of government to the end that all disorder and confusion might breake in upon him And in his answer to the above mentioned 19. propositions sent unto him by both houses of Parliament the 2. of June 1642. Declared unto them that those that had the conduct of that affair thought fit to remove a troublesome rub out of their way viz. the Law to the end they might undermine the very foundation of it Which every day after grew more and more visible when they being called together to council and advise him could not by their Votes which they would make as binding and obligatory as if they were Laws made and established by their Soveraign wrest and take from him the Militia or Sword wherewith he should protect and defend his people took it to be not a little advantagious to their purposes to ravel and dislocate the method and proceedings of his Laws and Justice By which his Throne was established that by overturning the long approved Laws and Customs of the Kingdom upon which the best Monarchy in the World was built they might open a passage to let in that gain and Anarchy which they aimed at which being once made known to their Emissaries and so much encouragement given by their members of that which was then untruly called a Parliament who rather then fail of Petitions unto them from the sons of Zerviah and Shimei out of every Countrey City Corporation and Market Town caused Printed Bills to be affixed upon the Posts and Corners of the Streets in London whose multitudes of Inhabitants in Masters Apprentizes Tapsters and other Illiterate and Vulgar kind of people could readily afford them good store of such as had been borne or lived in every County City and Corporation of England and Wales to give a meeting at a place appointed to some Members of Parliament for the framing of Petitions unto it And thus the Hounds being uncoupled and let loose to chase the Royal Hart and the Presbyterian Ministers like Huntsmen busied in the ha loo lo ho ha loo loo so ho. Whooping and following to cheer and set them on and busying themselves to remove all things that might hinder the pursuit of their Petitions for the presenting whereof Pulpit Granado men were employed to procure them to be brought with 100 or 200 or more of the factious on Horseback with the Petitions ready printed or Tackt to their Hats or Hatbands with Swords by their sides The London Porterswere set on to Petition against the Militia when they were only told it was against the Watermen for carrying Trunks and other Burdens by Water And a Schoolmaster at Stamford was so wickedly Ingenious as to make his Boyes subscribe a Petition to that Parliament against Episcopacy as if their Parents had actually done it In the mean time the Diurnals News Books and seditious Pamphlets the Stationers Arrowes and Artillery were day by day shot to wound him and incense the people against him and some of the Parliament men were heard to say That they could not do their work without them And the design was carried on so prosperously as too many thought their time best of all bestowed to pull down or take in pieces either all our old Laws or such a part of them as might not only undermine the frame and constitution of the Monarchy but innovate and introduce so much of their own Modells and Inventions as might either directly lead to a republique or some new devices of Anarchy A Book called the pollution of University Learning printed in 1642. Marched in the van together with another Book called the Observator and his Jesuitical principles Quod efficit tale est magis tale and that the King was singulis Major but universis Minor and those kind of Engines were greatly incouraged in their attempts by a Book of Junius Brutus his vindiciae contra Tirannos translated out of Latine into English to infect the people with Treasonable Doctrines And a Book intituled Maxims Vnfolded That the Election of the Kings of England ought to be by the consent of the people The Royal and politique power in all Causes and over all persons is properly the Parliament The Oath of Supremacy binds not in Conscience to the King against the Parliament but the Pope And another book written by Mr. William Prynn an utter Barrister of Lincolnes Inne Entituled the Soveraigne power of Parliaments and Kingdoms Printed at London in the year 1643. Wherein with heaped quotations and much Learning and reading the wrong way he was willing to invite his Readers to believe that the Court of Parliament had a lawful power to question the Kings Patents Charters Commissions Proclamations Grants Warrants Writts and Commandments whether they be legal and to Cancell and repeale them that be illegal or mischievous and onerous to the subject not only without but against his consent It is lawful for the people submitting themselves to prescribe the King and his successors what Laws they please the Sheriffs of every County were antiently elected by the Freeholders and had power to raise the Militia that the Navy Ammunition Armes and Revenue of the King though they be in his possession are the Kingdoms That Kings and their great Officers Counsellors and Justices were at the first created and elected by the people that the King hath an absolute Negative voice in the passing of Bills of common right and Justice for the publique good that the Parliaments present necessary defensive war is just and lawfull both in point of Law Divinity and Conscience and no Treason or Rebellion the Parliament hath a right and Jurisdiction to impose Taxes and Contributions upon the subjects for defence of the King in case of the King his wilfull absence or Arming against them Seconded by a Book entituled Lex Rex written as believed by one Rutherford a Scottish Divine Printed at London by John Field and published in the year 1644. By the then usurped authority wherein he falsly endeavoured to maintaine against all the grounds and fundamentals of Law and Religion That Kings and their Families have no calling to the Crown but only by the people Royalty is not transmitted from Father to Son if the people may limit the King they give him the power who is the servant of the people both objectively and subjectively and is inferiour unto them who cannot make away their power but do retain the fountain power of making a King that to swear non self preservation and to swear self Murther is all one The King is a Fiduciary Life-Renter not a Lord or Heritor the conscience of the people is immediately subordinate to God not to the King mediatly or immediately the Judges are the immediate Vicars of God not of the King The Parliament hath more power then the King The Crown is the Patrimony of the Kingdom not of him who is King or of his Father The Parliament
are not Judges by derivation from the King Who cannot make or unmake Judges Inferior Judges are more necessary than a King Parliaments may conveen and Judge without a King Are co-ordinate Judges with him not advisers only Subordination of the King to the Parliament and Co-ordination are both consistent The King transgressing in a hainous manner is under the coaction of Law Defensive Wars are lawful And there may be a distinction betwixt the Kings person and his Royal power The Physical act of taking away the life of offending persons when commanded by the Law of self-defence is no Murther Wars raised by the Subjects and Estates for their own just defence against the Kings bloody Emissaries are lawfull Parliament power is a fountain power above the King Who is but a noble Vassal of the Kingdom Is not head of the Church The people in some Cases may convene without the King Subsidies are the Kingdoms due rather then the Kings And thus provided and the scaling ladders made ready to storm the Laws which were the Forts and Bulwarks of the King and Government and heretofore made it their business to give help or shelter to the King the Deformers rather then Reformers do hasten one another to be up and doing And therefore in a Pamphlet entituled Liberty vindicated against Slavery Printed in the year 1645. the Author declared that Imprisonment for Debts is against the foundamental Laws of England Propositions were shortly after made unto that company of Monarchy underminers called the Parliament for the laying aside the six Clarks in Chancery and the imploying their under Clarks at Cheaper Rates In the year 1646. Mr. John Cooke of Grayes Inne who sufficiently deserved to be hanged drawn and quartered as he was afterwards as a Traytor in a Book dedicated to the most high and most honourable Court of Parliament the supreme as he calls it Judicatory of the Kingdom saith that the alteration of fundamental Laws as Sir Edward Coke saith produces many inconveniencies as in that statute of imprisoning mens bodies for Debt And there must needs be good work in that their sport of pulling down and setting up when it hath been as truly said as verified that the Kings Parliament began in 1640. and continued with some freedom of Votes untill December 1641. From thence it was governed by the City of London and their Tumults Propositions and Petitions unto December 1643. And from thence by the Scots and their rebellious League and Covenant unto the Month of June 1647. When the Presbyterians had the ascendant and predominancy and that was not unjustly called the Apprentises Parliament And after that Sir Thomas Fairfax his Parliament which was governed by his Army and their Addresses Declarations and Proposals wherein the Independant party were Superior and ought to be called the Agitators Parliament The King in the mean time in his great desire of peace with those whose wicked designes never intended it not making that right use which he otherwise might have done of the successes which God had given him in the just defence of himself and his Loyal Subjects and the Laws Liberties and Religion of his People tired with the treachery of those that too often betrayed and sold his just advantages and overpowered with an Army of Covenanting Scots who came to assist their brother Rebells of England and believing himself to be somthing safe in their Oaths and Promises and flying to them for Succour was by a party of them contrary to the Laws of God and Nations sold to the English Rebells for two hundred thousand Pounds Sterling Too great a summe of Money to be restored again as Judas did the thirty pence the wages of his sin for the betraying of our Lord and Saviour and by tricks and devices carried Prisoner from place to place untill he was barbarously Murthered And the Heire and Royal Issue driven out of their Inheritance and then every Mechanick head was set on worke to frame a new Government in which there were as many diversities of opinions as there were Ignorances and Sinister ends to advance their particular ambitions or advantages and a mart being kept of Whimsies some being much in love with the Balletting box used at Venice others with the Rota and Mr. Harringtons Oceana and all or too many thus busied Sedition and Ignorance sat in their Triumphal Chariots with the Laws Learning and Religion of the Nation like so many Captive Kings in Chains attending all which did not fully correspond with the Votes and expectation of the Presbyterians when as Cromwell the gâ—â—at Encourager of the Independents or Fanatick party then the more numerous feeling his own strength and having a prospect of a better design of establishing himself did so delay and trifle with the Parliament his Masters in their desires of disbanding the Armies as the Presbyterian Souldiers in the mean time selling their Debenturs the wages of their Rebellion and wickedness at 16 d. or 18 d. a pound with a long Interest to the Independents who were thereby easily enabled to buy King Queen and Princes the Bishops and Dean and Chapters Nobility and Delinquents Lands as they mis-called them and that party being so well gratified were not afterwards unwilling to Lacquey after his hypocrisie and permit him to frame and make his own Instrument and method of a more arbitrary Government then our Laws permitted or any of our Kings or Princes exercised and to be as a single person Protector of all the Knaves and Fools in England Scotland Ireland and Wales withall their fancied and supposed Liberties which as they used them were but to hunt and chase all that were loyal and honest and thought they might do any thing to the Amorites Moab and Amalek and that all the Scripture was contained in Gain being as they supposed Sanctified into a pretence and outward semblance of Godliness In the later end of the year 1648. some thousands of Well-affected as their Sedition perswaded them inhabiting the Cities of London and Westminster Borough of Southwark and Hamlets supposing the Time to smile upon their purposes did Petition that which when the King was murthered was no Parliament that they would consider the many thousands that were ruined by perpetual imprisonment for Debt and provide for their enlargement In the year 1649. one Thomas Faldoe of Grays-Inne Esq was so loth to have his Conceipts and Opinions lag behind as in a Pamphlet entituled Reformation of Proceedings at Law published on the behalf of himself and the Commonwealth of England he complained That the Law of Property was depressed and useless by the colour of the Statute of Imprisonment and sacrificed to all the Birds of prey even to Covetousness the mother of Cruelty in the several Offices and Instruments of Justice And in the same year came out a Representation of divers as they called themselves Well-affected persons in or about the City of London petitioning the Parliament That all tenures in Capite and all inferiour
in his Comment upon Magna Charta cap. 29. that the Custom of England declared by Magna Charta doth not extend to the imprisonment of any Debtors but the Kings And assisted those his wicked and false Rabshakesmes with another little Book called the Cry of Bloud dedicated to Oliver Cromwell General as he stiled him of the puissant Army of the Parliament of England wherein charging the crime of Murder and of the bloud of the righteous Abel as he is almost frantickly pleased to fancy it upon the Process of Arrest and Outlawry and that innocent and most necessary way of compelling men to Justice he stileth them a course of Sin and the Offices of those who do make them the gift of the Devil and the Lawyers liars although Mr. John Cooke of Grays-Inne before the Devil had entred into him and ingaged him to be a prosecutor of his Soveraign even to the Murder of him did in his Book printed in the year 1646. entituled A Vindication of the Professors and Profession of the Law dedicated to the then Parliament declare that he was confident that the Common Lawyers of England are as understanding rational men as any Practisers of any Profession whatsoever in the world and he durst say that there are more Godly religious Lawyers Attorneys and Sollicitors in England then in all that habitable part of the world called Christendom Mr. William Leach of the Middle-Temple proposed that no Defendant should be enforced to appear unto any Action before a Poenal Summons and a Declaration first filed unless in case of likelihood to depart the Land or to make away his Goods and in such case upon an affidavit to be made before a Justice of Peace by any Officer to be arrested Isaac Pennington the younger the Son of that man of Faction his Father offered in a Pamphlet to assert that the Rights Liberties and safety of the people were in themselves and derivatively in the Parliament their Substitutes and Representatives and that the people ought well to look to their rectifying right that it may have its free current Mr. Henry Robinson in his publick Proposals for a cheap and easie distribution of Justice would have a publick Country Registry for Lands and another for Debts and that in every City Corporation and Division in each County Judges may be appointed with an yearly Salary By a Petition of many calling themselves a Free-people promoted by John Wildman and John Lilburne Gent. they do require that all the Laws Process and Inrolments of England be written in English and a Roman or Secretary hand Hugh Peters a Prompter at a Play-house long before he was a my mick Preacher and the abuse of the Pulpit having made many a Renegado Voyage from England to Holland thence to New-England and from thence in the company of other Birds of Prey pearching here again in England was so unwilling not to be as busie in the ruine of his Country as other men of the Trinkets and new Fangles were as in his Book entituled Endeavours as he saith aiming at the Glory of God that Peace and Truth may meet together undertaketh to prove that Government by succession from Father to Son was none of Gods institution in the first and purest Times that Custom hath worn out Truth but we were to enquire for the old and good ways and Christ saith it was not so in the beginning And in June 1651. in his Book entituled Good Work for a Good Magistrate would have Registers to be setled in every Parish of all Mortgages Alienations c. and from thence transmitted to the County or Shire-Town that in every County every Hundred do choose three men to be Peace-makers for a year to determine all common controversies without Appeal Wills and Testaments to be acknowledged before two next Justices and entred in the Parochial Registries five or seven in every Town or Hundred to be yearly chosen to determine all Debts or Strifes whereof three to give sentence without Appeal that Summons instead of Arrests may be left at mens houses none to distrain for Taxes or Debts but the Debtors outward doors to be taken away and carried to the Town-house and as many other new doors as shall be set in the place every man plead his own cause and if he think himself too weak let him have liberty to take a Friend or Neighbour to plead for him but no Advocates or Seriveners to plead for any man if any Lawyers be continued let them be allowed and paid by the State all Suits in London and great Cities to be determined in a week Which being done it was very advisable to burn all the old Records even those in the Tower the monuments of Tyranny And had so in a short time after haled on his design of destroying all the Records and memorials of the Laws of England to make way for his new contrivances as a Serjeant at Arms of the then miscalled Parliament or one of their Mock-Majesty Mace-bearers had an express order happily diverted by some other affair when it was ready to be put in execution to throw all the Records remaining in the Treasuries at Westminster into the River of Thames And the Law that it might the better be baited and abused as if no Foreigners could ever have occasion to read understand or make use of them must with its Writs Records Process and Proceedings for the time to come be written in English many of the Law-books being in order thereunto by the factious and greedy avarice of many of the Book-sellers and Stationers procured to be mercenarily translated into English and exposed to the rude eyes and hands of the ignorant and the little reason that the Owners of it do use to have whereby to make it a Ludibrium and the wonder of their lesser Intellect which might easily happen where they wanted the keys and assistance of other Learnings and every thing their shallow apprehensions could not reach or fathom was by them supposed to be Norman slavery Antichristian or Idolatry the Records must no more be written in the long-lasting and durable Court and Chancery hands or manner of writing made out of the old Saxon Gothick and Reunick Characters as they were wont to be and had been for many ages before but in a Secretary hand not that strong and legible hand heretofore used but a kind of Jack-an-Apes hand composed of Antick frisking undistinguishable letters so written with the side of a Pen and small slit as that scratching rather then writing hath been often seen not to be able to keep company with the Parchment it was wrote upon the small period of Oliver Cromwells wickedly usurped Dominion Which needless change and novelty with other the doings of the Factious and Rebellious so wrought upon the minds of the ruder sort of the people to the joy and comfort of those who thought themselves to be specially Godly as the Lawyers could not pass in the Streets without many
happen consequences hunted to death upon a supposition of subverting the Laws when if it had been either possible or true it could upon an Accumulation of all â—his pretended Crimes have extended no farther then an endeavour to subvert one of our Fundamental Laws may be their own Judges convict and justly condemn themselves for unpardonable faults in seeking to subvert so many of our Fundamental Laws uno Ictu with one stroke and at once which they themselves â—ave sworn to maintain and defend Notwithstanding all which Oliver Cromwell did so well understaâ—d his own interest and single-personship CHAP. XVII That neither Oliver Cromwell or his Son Richard the second mock Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refermations ANd that the administration of Justice was a great end and one of the principal parts of Government and remembred that the men of Westminster of which he was too great a member and director calling themselves after the murther of the King a Parliament did the 9th day of February 1648 declare that they were fully resolved to maintain and should and would uphold preserve and keep the Fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto and required all Judges Justices Sheriffs Officers and Ministers of Justice to proceed in their respective places and offices accordingly and did the 17th day of Marâ—h then next following declare That our Laws being duly executed are the most just free and equal of any other Laws in the world and that they were very sensible of the excellency great antiquity and equality of them and that the liberty property and peace of the Subjects were fully preserved by them did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil giddy and vertiginous brains or by the perswasion of some idle and ridiculous Pamphlets written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom to settle and set up a Weather-cock Government ridiculous to all other Nations as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th day of September 1654. declare that in every Government there must be somewhat fundamental somewhat like a Magna Charta that should be unalterable that some things are Fundamentals which he should deal plainly with them may not be parted with but were to be delivered over to posterity else every succeeding Parliament would be disputing to change and alter the Government and we shall be as often brought into Confusion as we have Parliaments and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary as they ordered only prisoners to be discharged out of prison if they made Oath that they were not worth five pounds after their Debts paid and undertake to pay their Debts when they should be better enabled which to procure their liberty made many lustily to Forswear themselves and had no great cause to be in love with their pretended Reformations when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits and committed by them a prisoner to the Fleet. And when in the year 1653. or beginning of the next ensuing by an Act of Parliament had for the relief of Creditors constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall and several other Committees in all the Counties of England and Wales and impowred them to be the only Judges though not Sworn to hear and determine matters of Debt and escape to fine for breach of trust and concealments imprison set at liberty remaund to prison adjudge to the Pillory or house of Correction grant lease or sell the Estates of the prisoners were to admit of no legal forms but proceed in a summary way and to be responsible to none but the Parliament and sell dead prisoners Estates as well as if they were living whether the Lands were Entailed or not It was upon complaint of some prisoners of Note and Worth alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee the one as a Solicitor and the other as a Councellor at Law would bring his party with him whisper unto his Fellow-Judges arise from the Bench and go and sit by the Clark and make the Orders as he pleased and liked those his doings so well as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it and might be in good hopes of it when besides those his ungodly Extraordinaries large Salaries were allowed to him and his Brethren of that Committee for their Sons and Agents and the gain which they and their Confederates might have by the sale or indirect purchase thereof in other mens names that Committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates The pretending Gospel-Improvers in South-wales had shut up most of the Churches and gathered in the mean time one hundred fifty thousand pounds into their private purses and therefore both Oliver and Richard Cromwel their Councel Parliaments did only receive those unquiet Innovators Petitions and as they did in the determining of what should be Incumbrances fit to be put into a publick Registry or the taking away of Tythes make a shew of intending great matters when they only hung them upon long delay 's and an everlasting deliberation never to be brought to any conclusion And our Laws having thus long fought with Beasts like St. Paul at Ephesus might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tranquility but it seems as the wrongs done unto them were unrepented so were their patience and sufferings to be prolonged And the professors of our or any other good Laws should not be so contemptible when that blessed Apostle could be no less than a Lawyer when he sate and had been Educated at the feet of Gamaliel and was afterwards by his Apostolical Office and great Endowments in all manner of Learning such a darling and beloved of God Almighty as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him when they were before and that time and long after in better Ages of such an esteem and usefulness amongst the wiser and better sort of man-kind as they were justly called Sacerdotes Justitiae Ministers that sacrificed for the
maliciis Vicecom obviam cap. 67. Mirrour of justice 79 register 267. 20. E. 2. Register 267. 8 E. 3. corain rege Roâ—i 24. Statute of Laborers 18. E. 3. Lib. Assis. 22. Ed. 3â— 61. Br. Conusans 33. 22. Assis. 43. Brook tit execution 79. Coke l. 3. relat Sir William Herberts Case 25. Ed. 3. cap. 17. Ro. part 25. E. 3. Bracton lib. 3. cap. 13. Oldendor pius in definit actionum 25. 31. Selden de Synedriis in prefat 61. 62. Bracton lib. 3. cap. 1. §. 3. Westminster cap. 15. F. N. B. Coke 8. relat Beechers case 19. E. 3. 37. E. 3. cap. 2. 38. E. 3. cap. 5. 1 R. 2. cap. 12. 15. Rs. parl 2. R. 2. m. 72 73 74. 2R 2. cap. 3. 1. H. 5. â—a 5. 7. H. 5. ca. 1. 23. H. 6. ca. 10. 19. H. 7. ca. 6. 6. H. 8. cap. 4. 23. H. 8. cap. 14. 34. H. 8. cap. 16. 1. E. 6. cap. 10. 5. E. 6. cap. 26. 5. Eliz. cap. 26. 8. Eliz. cap. 2. 31. Elâ—z cap. 3. Ibidem cap. 6. 43. Eliz. cap. 6. 21. Jac. cap. 24. 13. Car. 2. Trin. 17. E. 2 in communi Banco in aliis antiq Record Rotulis ejusdem Cur. 〈◊〉 Oldendorpius de definit actionum 11. 20. 21. Goldastus constitutiones Imperial 18. cap. 8. Spelman Glossar in verbo Hinfare Jo. Koppen in decision questionum in Germania qu. 35. §. 1. 2. 4. qu. 29. § 10. 15. Cromerus lib. 2. de Polonia Commentar de Russia Laws of Geneva Printed at London 1562. Molin in consuetud Paris tit 2. gl 1. Num. 3. Bibliotheque oâ— Thresor du droit du France tit Arrests 326. Gonzale de Suarez de pas as part Tom. 81. decret Uladisâ—ai Regis Hungariae Anno. 1492. Art 91. Edicts Arrests de Savoy An 1574. Laws of Genoa Printed at Milan 1576. Laws of New-England Printed at London 1641. Purchas Pilgrimage lib. 5. Deut. 25. v. 1. 3. 2 Reg. 4. v. 1. 2. Matth. 18. v. 25. Gellius noct Attic. Livy Plutarch in vita Luculli Solonis Dionisius Halicar lib. 6. LL. Longobard tit 21. §. 1. 7 8. LL. Wisigothorum in Liudenbrogio l. 2. cap. 88. Fletcher de Republica Moscoviae Quenstadt de Sepultur veter Valer. Maxim l 5. cap. 4. Covarruvias de variorum Resolut Goldastus Constitut. Imperial Philip Albert Orthen de Regali Conducendi Jure cap. 4. 9 13. Impress Norimbergae Anno 1672. Skeneus Reg. Majest Craig de Feudis LL. Canuti §. 2. LL. Edgari 11. 67. LL. Canuti 30 61. LL. Edwardi Confessor 45. Bracton de Corona cap. 11. Stamford lib. 3. cap. 35. tit forfeiture Westminster 2. c. 18. Rot. Parl. Petitions in Parl. 25 E. 3. Charles George Cock Essay of Christian Government in Anno 1651. Stat. of Acton Burnel 13 E. 1. Juxta Gl. in l. 14. C. de advocat divers Judic Exod. 22. v. 26. 27. Dâ—ut 24. v. 10 11 12. LL. Alamannorum in Lindenbrogio 86. LL. Wisigothorum lib. 5 §. 2. LL. Longobard tit 21. §. 5. 16. Edictum Theodorici Regis 122 123 124. LL. Frisonum tit 9. in additamen sapient Ulmari LL. Bajuvariorum §. 24 LL. Wisigothorum lib. 5. tit 3. LL. Longobard tit 21. §. 3. LL Baivar tiâ— 12. §. 1. 3 4. Constitut. Theodoric in Goldasto §. 95. LL. Longobardorum tit 21. §. 26. LL. Burgundionum §. 9. 19. LL. Bajuvariorum tit 3. §. 24. Purchas Pilgrimage Tom. 1. Pryns Historical Collections in the Reigns of King John H. 3. E. 1. Rot. Pat. 25 E. 1. intus Bracton lib. 3. de actionibus ca. 3. Fleta lib. 2. ca. 6. §. 22 23. Fleta Bronkhorst tit Reg. Juris Commentar ad loc Bracton lib. 1. ca. 5. Grotius de Jure Belli lib. 2. ca. 6. Scottish Records in the Tower of London whilst they were there imprisoned by Oliver Cromwel Parl. James the Sixth in Anno 1600. John Coppen in Rangensdorf in Decis quaestion 33. Butrigarius in Tract de Renunciation Genesis 47. Genesis ca. 38. Genesis ca. 42. Sigonius de Judiciis lib. 1. cap. 21. Bracton lib. 5. de exceptionibus ca. 8. 31. Exodus 22. 7 8. Bracton lib. 1. ca. 6. Coke 2. part Institutes 47. Verstegans Antiquities ca. 3. Stamfords Pleas of the Crown Oldendorpius in diffinit Actionum 1 Sam. ca. 17. v. 25. Dugdales 1. part Monastic 172 173. Blounts Nomolexic in verbo Frodmortel Spelman Glossar in diatriba de Comitib Spelmans Glossar in verbo legalis Bacons Historical Discourse of the Government of England Psalm 15. Ursinus Cathechisme Majer upon the â—8 Commandment Laws of War 23 H. 8. ca. 9 Coke 2. part Institutes 52. 14 Eliz. ca. 15. Sigonius de Repub. Athen lib. 3. ca. 4. Rous. Archeologia Attica lib. ca. 4. Plutarch in vita Solonis Plutarch in vita Luculli Livi Dec. 1. lib. 2. Livy lib 3. 109. Dionis Halicarnassaeus lib. 10. Livii Decad. 1. lib. 3. Pomponius de origine Juris lib. 2. §. 4. Isidorus 5. orig Sigonius de Judiciis lib. 4 1. ca. de in jus vocatione Aulus Gellius Attic noct lib. 20. ca. 1. Cujacius lib. 10. ca. 10. Gothofredus in fragmen 12. Tabularum Sigonius de Repub. Athen lib. 1. de judiciis Gothofredus in Fragmen 12. Tabul Gellius lib. 20. Livii Decad. 1. lib. 3. Sigonius A. Gellius Attic. noct Livii lib. 3. 110. Lib. 3. 117. Pomponius lib. 2. de Origine Juris Livii lib. 6. 225. Livii lib. 6. 226 227. Livii lib. 6. 228 229. Livii lib. 6. 230. Livii lib. 6. 231. Plutarch in vita Camilli Livii lib. 6. 236. Livii lib. 6. 239 240. Livii lib. 6. 241. Lib. 6. 242. Lib. 6. 243. Livii lib. 6. 245. Livii lib. 6. 247. Livii lib. 6. 248. Plutarch in vita Camilli Livii lib. 7. 262. Ibid. 263 Livii lib. 7. 267. Livy lib. 7. 279. Lib. 8. 301. Livius in 4. Edit apud Francofurt ad Moenum Anno 1568. p. 411. Sigonius de Antiquo Jure Roman 120. Joannes Sarius Zamoscus de Roman Ant. Augustinus de S. C Rom. Bodin lib. de Repub. Dionis Halicar lib. 4 7. Bodin de Repub Paulus Manutius de Legibus Romanis Livy lib. 9. 339. Livy lib. 38â— 1017. Plutarch in vita Scipiouis Africani Livy lib. 38. 1022. Tacit. Annal Cicero lib. 1. Tusc. quaest Strabo lib. 14. Cicero lib. 2. de Legibus Ammianus Marcellinus lib. 11. Quintilian lib. 5. ca. 6. Ritterhusius Commentar ad 12. Tabul cl 1. Gothofrâ—dus ad Tabul de in Jus 〈◊〉 Peregrinus Janninius Tract de Citat real lib. 1. ca. 2. ab §. 141. ad 199. lib. 2. ca. 1. 25 E. 3. ca. 4. 36 E. 3. ca. 1. The Oath of a Freeman of London and Acts of Parliament for confirmation of their Liberties In Archivis in albo Turâ—i London in recept Thesaurat Scaccarii post 25 E. 3. Pas 22. E. 1. London rot 3. 7 H. 5. ca. 1. 19 H. 7. ca. 6. 23 H. 8. ca. 14. Trin. 21. Eliz rot 113. in Banco Regis Old Book of Entries tit false Imprisonment fol. 320. Welwade Sea-Laws 27. 63. 38 E. 3. ca. 1. Petitions Parl. 38 E. 3. Rot. Parl. 46. E. 3. Rot. Parl. 50. E. 3 7 H. 4. ca. 13. 10 H. 6. 18 H. 6. ca. 9. Inter Petitiones Parl. 33 H. 6. n. 57. Cokes 2. part Institutes 50 51. Posthuma Grotii in Epistola quadam Plowdens Comment 363 369 469. Ibid. 46 467. Cokes 5. Report 2. part 5 6. Cokes 3. Relat Case del fines 5 Eliz. ca. 4. 28 E. 3. ca. 3. 42 E 3. ca. 1. Coke Comment super Magna Chart. 37 E. 3. ca. 18. Petition of Right in 3 Car. primi Vide Act of Common Councel Cokes 11. Reports Doctor Fosters case Cokes 6. Reports 10. 18. H. 6. ca. 9. Rot. Parl. 5 R. 2. Coke in prefat ' 8. Report Fortescue de laudibus legum Angliae Cokes 2. Relat in prefat Bracton lib. 5. ca. 33. Genesis 42. v. 16 36. Sir Edward Coke in Mag. Chart. 50 51 53. Register 64. Rot. pat 21. E. 3. part 1. Asser Menevensis de Alfredi rebus gestis 21. LL. Inae ca. 6. LL. Alured cap. 6. â—3 LL. Inae ca. 23. Mirrour of Justice cap. 1. §. 3. and cap. 5. §. 5. and Articles upon the Statute of Westud 2. Mirrour of Justice ca. 5. §. 2. Spelmans glossar ' in verbo Justicia Eire LL. Alured cap. 1. Exact Collection of the Kings Speeches Declarations Ibidem Prynns soveraigne power of Paliarments Rutherfords Lex Rex Heugh Peters Good Work for a Good Magistrate Mr. Jo. Dury's Re-proposals Mr. John Rogers Sagrir Boons Examen Legum Angliae ca. 3 4 5 6 8 10 11 12 13. Declaration of the Army in Anno 1659. Declaration of Parliament 9 Feb. 1648. Declaration of the Parliament of England 17 March 1648 expressing the grounds of their setling the present Government in the way of a Free-State Cromwel's Speech to his Parliament upon his Dissolution of them the 12th day of September 1654. Remonstrance of the prisoners for Debts to the Parliament concerning the injustice of the Committee fitting at Salters-Hall in London for relief of Creditors and Prisoners The distressed condition of the Inhabitants of South-Wales Linwood in constitutionibus Othoboni Josh 15 Calvins's case in Cokes 7 Reports and Lord Ellesmeres post nati Mic 12 E. 4. 22. Shefferus History of Lapland cap 11. Proposals of S. D. and divers Atorneys of the Court of Common Pleas to the Committee for the Regulation of the Laws 24 May 1650. Exod. 22. v. 26. Deut. 17. 12. 13 E. 1. Ca. 18. 1 H. 4. 6. 15 H. 7. 14 15. 45 E. 3. 19. 34 E. 3. Br. 922. Pas. 22 E. 3. 4. Jones Reports 255. Bracton lib. 5. c. 17. Zeiglerus dicastice sive de Judicum officio conclus 40. §. 1 9 46 53 Cic. Offic. l. 37. ff de Legibus l. 34. l. 114. ff de Reg. Jur. Tob. Paurmester de Jurisdict lib. 2. ca. 6. num 119. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 § 4. in his Soliloquies upon the 19 Propositions Varsevicus de legato 22.